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Staff attorney for the U.S. Department of Homeland Security said two Honduran men arrested in Louisiana should not be deported because they were detained by local police on the basis of their ethnicity, according to an internal email obtained by the Los Angeles Times.

The case highlights the ongoing concern among some senior leaders in the Homeland Security Department that local police are making arrests based on appearance and then calling immigration agents to check immigration status.

An attorney with the DHS’ Office of Civil Rights and Civil Liberties recommended Sept. 21 that the two men, who are in the country illegally, be released because they pose no threat and should not have been arrested in the first place.

“Detention based on ethnic appearance … is not an appropriate form of police custody for Border Patrol or ICE to use as a foundation for an enforcement action,” wrote Megan H. Mack, a lawyer with the civil rights and civil liberties office.

Her internal report, intended for ICE Director Sarah Saldana and other officials in the department, was inadvertently sent to lawyers for the two men.

Immigration and Customs Enforcement officials chose not to follow her recommendation and say they are following department guidelines in deporting the men. They say the two men, Jose Adan Fugon-Cano and Gustavo Barahona Sanchez, both had been removed from the U.S. before, and thus are still priorities for deportation under the department’s new guidelines. The men are now being held in the Alexandria Transportation Center in Louisiana, the last stop for many unauthorized immigrants who are flown from the U.S.

According to the lawyers, it also shows that the agency is still using arrests by local police to round up low-level offenders in the country illegally, in spite of a new plan to target only priority cases.

“I think at the end of the day they do have targets to meet and they’re willing to do whatever it takes to meet those quotas,” said Julie Mao, a lawyer with the New Orleans Workers’ Center for Racial Justice, who represents the two men. “This is a precise example of an agency with no transparency.”